However uncomfortable has been their association of late, the U.S.C.C.B. and the Department of Health and Human Services have been partners in millions of dollars in federally funded social services and over the past year or so on one court docket. Now a U.S. District Court decision in Massachusetts has added another layer of complexity to the ongoing dispute over religious liberty between the Obama administration and U.S. bishops. Judge Richard Stearns ruled yesterday that the terms of a Department of Health and Human Services contract with the U.S. bishops’ Office of Migration and Refugee Services indeed, as the American Civil Liberties Union of Massachusetts charged, constituted a violation of the Establishment Clause. Stevens decided a religious accommodation over abortion and birth control built into the contract allowed M.R.S. to impose a religiously based restriction on the disbursement of taxpayer-funded services. The contract permitted M.R.S. to restrict its health services sub-contactors from providing abortion or contraception counseling or services to trafficking victims.
The Massachusetts ACLU had sued H.H.S. because of the five-year contract for services for human trafficking victims with M.R.S., which had been hired as a national general contractor for counseling and other social services for women escaping trafficking. The office was not selected for a renewal of that service, launching one of the U.S.C.C.B.’s ongoing conflicts over religious liberty with the Obama administration, and in this case, partly over the meaning of the term itself when associated with entities receiving government contracts.
The services were provided under a contract awarded by the HHS under the Trafficking Victims Protection Act, the aim of which is “to combat … a contemporary manifestation of slavery whose victims are predominantly women and children.”
The USCCB entered into subcontracts with over 100 service providers, with each subcontract including the restriction that “funds shall not be used to provide referral for abortion services or contraceptive materials.”
The American Civil Liberties Union of Massachusetts argued that the government “would appear to have endorsed a Catholic belief” and impermissibly delegated discretion to the USCCB.
Judge Richard G. Stearns agreed.
“Here, … the restriction on the use of TVPA funds for abortion services and contraceptive materials is not a subject of truly voluntary participation; subcontracting organizations and trafficking victims cannot ‘opt out’ of the restriction without shouldering the financial burden of doing so,” Stearns emphasized. “[T]he government defendants’ delegation of authority to the USCCB to exclude certain services from government funding ‘provides a significant symbolic benefit to religion,’ in violation of the Establishment Clause,” he added.
“To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others,” the judge reasoned.
You can read the complete ruling here.
Stevens added a final observation worth noting: "This case is not about government forcing a religious institution to act contrary to its most fundamental beliefs. No one is arguing that the USCCB can be mandated by government to provide abortion or contraceptive services or be discriminated against for its refusal to do so. Rather, this case is about the limits of the government’s ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them)."
The ruling will surely complicate future contracts between government entities and social service agencies run by religious bodies when they intersect such contested matters as abortion or contraception. Could it jeopardize a recent detente between Catholic Relief Services and U.S. Agency for International Development?
There is little chance that federal or state grant writers will be able to disregard this decision when composing requests for proposals in the future. For many complicated social service needs that are outside the current capabilities of government, religious providers like CRS, Catholic Charities USA and the Salvation Army are the only qualified bidders out there. It appears time for creative thinking, either within the bureacracies of government or churches or among state and federal legislatures, to work around such obstacles.